1. Before the use commences, plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be modified to clearly identify the area within which liquor may be consumed within the confines of the premises.

3. Without the further consent of the Responsible Authority not more than 45 seats inside and 12 seats outside shall be made available to patrons.

4. Liquor must not be supplied to patrons from the windows facing the food hall.

5. Signs must be affixed to all exits requesting patrons to be mindful of and respectful of other patrons of the Market when leaving the premises.

_____________________________

For the Responsible Authority: Mr D Scally, Best Hooper

1. This is an application for review of the decision of the Responsible Authority to refuse to grant a permit to use the premises at Shops 13 and 14, 322-326 Coventry Street, South Melbourne to serve alcohol.

2. Shops 13 and 14 are located within the South Melbourne Market. They are leased to Patto's Potatoes Pty Ltd by the Port Phillip City Council, the landlord of the premises. Shops 13 and 14 are located adjacent to the food hall at the south west corner of the site.

3. The lease was entered into on 1 July 1998 for a term of five years. Under the terms of the lease the premises are to be used as:

Take away and eat-in shop food to be fully prepared on the premises.

Take-away menu for immediate consumption including sandwiches/foccacia, frozen yoghurt, ice cream and yoghurt drinks

Take-away menu for take home heat and serve variety including bottled sauces, jams, chutneys, potato shells, gourmet pies, variety breads, crepes, filo pastries, buritos, mexican style, casseroles, quiches, brewed variety teas, freshly ground coffee by cup and by weight, hand made chocolates and biscuits, fresh juice and herbal drinks, chicken, potato, and vegetable products, salads and drinks.

4. The premises are located within the Business 1 zone under the Port Phillip Planning Scheme. A food and drink premises is a section 1 as of right no permit required use. Under clause 52.27 of the Planning Scheme a permit is required to use land to sell or consume liquor, if a licence is required under the Liquor Control Reform Act 1998. A licence is required to supply liquor on premises under the Liquor Control Reform Act.

5. The applicants stated their proposal as follows:

We currently sell take away food to a communal food hall and cafe food to our sit down area fronting Coventry street. Applying for a liquor licence will allow us to serve alcohol to our customers with a better standard of food (alcohol will only be served with food). We currently employ 4 staff on a casual basis. Our hours of operation are those of the market (namely)

6. Mr Pattison advised the Tribunal he intended to offer a range of inexpensive wines (5 - 10 varieties) at $10 - $20 by the bottle or by the glass and a range of local beers by the stubby $2.50 - $4.00. He indicated that alcohol would only be available to customers in the sit down area of the cafe where they could order alcohol to have with their food. Currently there are 10 tables and 45 seats inside and 3 tables with 12 seats outside for the use of Patto's patrons.

7. Mr Pattison indicated it was his intention to employ an additional staff member to supervises the service of alcohol. In his view this added service would enhance his business.

8. Mr Scally advised the Tribunal that the Port Phillip Council as landlord of the premises did not consent to the supply of liquor from the premises. In this respect he stated the Council did not consider it was in keeping with the family - style atmosphere recognised within the Market.

9. Only one shop, Stall 73 within the Market has a related Liquor Licence. This is Swords Wines which has a package liquor licence with limited tasting of wine on-premises. This it was submitted was different to the sale of alcohol to be consumed on the premises within the Market.

10. Mr Scally submitted that the Market was surrounded by a number of Hotels and their existence should be considered when looking at the proposal. The number of Hotels surrounding the Market is in the Tribunal's view not a reason for refusing to allow a shop within the Market to serve alcohol with food. This is no different to another cafe or restaurant establishing itself in the vicinity. It is doubtful as to whether the service of alcohol as part of any such business would be considered as having an impact on the other Hotels or cafes in the vicinity, it would be more likely to be considered as healthy competition.

11. Mr Scally referred to clause 21.05-10 Retail Land Use in the Municipal Strategic Statement in which retail centres are recognised to "provide a sense of place for the community". He submitted the objectives of the retail centres are to be economically viable, offer safety, security comfort and convenience as well as retaining and emphasising their local character and heritage. The Market had he stated no history of alcohol being permitted and to allow the permit would not retain and enhance the local character and heritage of the Market.

12. He also stated that the service of alcohol could lead to an impact on the safety of users of the Market particularly as the aisles become congested and it becomes hazardous for the elderly.

13. The service of a glass of wine or beer with a meal occurs in numerous places where areas become congested, such as the food hall area at Southbank or the Prahran Market. Having alcohol with a meal does not necessarily lead to issues of safety or security and a person having alcohol with a meal at Shop 13 in the Market is in the Tribunal's view no different to a person having alcohol in any one of the Hotels or cafes that surround the Market. There is nothing to prevent those persons from walking across the street and walking through the Market. This no doubt occurs everyday the Market is operating and there was no evidence that there was any safety or security issues that had arisen as a result. It also seems somewhat hypocritical of the Council to allow one stall within the Market to conduct wine tastings if there is such concern about safety and security that emanates from the service of alcohol.

14. There are also a number of areas in which families go where alcohol is served with meals. This is no different to any cafe or restaurant. The shop is close to the food service area and is not part of the general aisles where purchases of goods take place. It is unlikely that the service of alcohol with food from this small area will have any impact at all on the general hustle and bustle of the Market.

15. There is nothing that indicates that the service of alcohol with a meal within a defined area would in any way affect the amenity of the Market, by undermining its local character, having an effect on its heritage or creating safety or security concerns.

16. Mr Scally also submitted that as the landlord was refusing consent then the failure of a land owner to consent to a planning proposal is one of the matters to be considered. Mr Scally referred the Tribunal to a decision of the Tribunal in 2000/027211 constituted by Deputy President Macnamara and Member Davis where they considered that the views of the Landlord in not consenting to the grant of a permit are determinative of the application before it. This matter has subsequently been reviewed by His Honour Mr Justice Smith in the Supreme Court where His Honour found it is a matter that can be considered but is not necessarily determinative without hearing the full planning merits of the proposal: Port Phillip City Council v Maureen Hickey & Ors [2001] VSC 129.

17. Mr Scally also referred to the lease and the reference to "drinks" submitting the principle of ejusdem generis applies and the sale of "liquor" is not contemplated. The word "drinks" in the Tribunal's view is not necessarily restricted to the types of drinks referred to in the document. Although the Tribunal would read the reference as giving a wide meaning to the term this issue is not a matter within the Tribunal's consideration.

18. The Tribunal has taken note that the landlord namely the Council will continue to oppose the service of alcohol however the Tribunal is of the view that following consideration of the application in planning terms there is nothing that prevents the granting of a permit and in the circumstances the Tribunal will allow the application for review and determine a permit issue subject to conditions.

____________________________